By Stephanie Weiner – Edited by Evelyn Breithaupt
On July 31, a Boston federal jury ordered physics Ph.D student Joel Tenenbaum to pay $675,000 in damages to various recording companies for willfully infringing 30 songs by downloading them over KaZaA — an award of $22,500 per song. It was only the second file-sharing case to go to verdict in the Recording Industry Association of America’s (RIAA) anti-downloading litigation campaign, along with that of Jammie Thomas-Rasset, though thousands are settled or pending.
Each day of the trial was thoroughly covered by Ben Sheffner, guest reporting at Arstechnica. JoelFightsBack — Tenenbaum’s defense team’s blog — provides extensive information about the case, including firsthand accounts from Tenenbaum himself. Ray Beckerman argues that the most salient legal issues remain unresolved, and that the plaintiffs ought to have been held to higher evidentiary standards in order to establish infringement and entitlement to statutory damages higher than the minimum available.
Defending Tenenbaum was Harvard Law School professor Charles Nesson, whose unusual litigation tactics have been much blogged about since he took the case in September 2008.
Over the months leading up to the trial, a series of adverse rulings against Tenenbaum made it increasingly difficult to present his case as defense counsel Nesson had planned. District Judge Nancy Gertner dismissed Tenenbaum’s abuse-of-process claim against the plaintiffs and denied his motion to join the RIAA in that claim; excluded four of his proposed expert witnesses and limited the scope of a fifth; denied a motion to exclude all MediaSentry evidence, on which the plaintiffs relied to link the file-sharing with Tenenbaum’s computer; and excluded all potential jurors who admitted to using peer-to-peer networks to obtain music, a ruling which Nesson protested deprived Tenenbaum of a trial by a jury of his peers.
Perhaps most damaging, however, was Judge Gertner’s ruling, less than eight hours before the start of trial, barring Tenenbaum from presenting a fair use defense to the jury. Nesson had planned to argue that, in addition to the four factors laid out in the fair use statute, 17 U.S.C. § 107, the jury was free to and ought to consider additional factors grounded in the fundamental concept of fairness, in determining whether Tenenbaum’s downloading was a permissible use of the copyrighted works.
Tenenbaum did not deny downloading the 30 songs in question; in a surprising turn, he took the stand on the final day of testimony and acknowledged downloading and distributing all 30 songs at issue. Following his testimony, Judge Gertner granted the plaintiff’s motion for directed verdict on infringement, leaving the jury only to consider whether such infringement was “willful” and determine damages. The plaintiffs elected to recover statutory damages under 17 U.S.C. § 504), meaning if the jury made a finding of willfulness, they could award damages within the range of $750 to $150,000 per song (or up to $30,000 per song if they did not).
Nesson argued that Tenenbaum’s downloading was not culpable; that he was simply like every other kid of his generation who discovered easy access to a world of free music when Napster appeared back in 1999; that he neither intended nor caused any harm; that for a youth who loved music merely to click on his computer, without considering or understanding a copyright law that never contemplated such technology, was not akin to stealing. The plaintiffs, by contrast, painted Tenenbaum as a repeated and knowing infringer who consistently took action to evade the law.
Tenenbaum may appeal the damages award as unconstitutional as well as one or more of the adverse motions rulings. There is significant debate over whether it is appropriate or even legal for the RIAA to initiate individual suits like the one against Tenenbaum to “teach other people a lesson,” a purpose the plaintiffs openly acknowledged on the stand during the trial.
In earlier coverage of the Tenenbaum case, JOLT Digest has reported on the First Circuit’s ruling overturning Judge Gertner’s decision to allow a webcast of the Tenenbaum trial and has commented on the merits of allowing public access to courts via the Internet.